COOPERATIVE AGREEMENT
By and Between
CITY OF ANAHEIM
And
CITY OF ORANGE
For
THE OC RIVER WALK
This Cooperative Agreement (“Agreement”), is made and entered into this ______ day of _______________ 2023 (“Effective Date ”), by and between the CITY OF ANAHEIM (“ANAHEIM”), a municipal corporation in the State of California , the CITY OF ORANGE , (“ORANGE”), a municipal corporation in the State of California, (hereinafter the aforementioned parties are sometimes referred to collectively as the ‘PARTNERS’ or “Parties”, and individually as a “PARTNER” or “Party”).
RECITALS
WHEREAS, ANAHEIM is proposing to develop the OC River Walk Corridor ( “CORRIDOR”) (see Exhibit A) by collaborating with various local agencies on projects to enhance an area in, on and along the Santa Ana River (“River”) generally between Ball Road and Orangewood Avenue, to provide multiple, critical benefits to residents and vis itors with water supply, flood control, ground water recharge, habitat, active transportation, and recreational improvements; and
WHEREAS, the CORRIDOR is situated primarily within the jurisdictional boundaries of ORANGE, with the remaining within the jurisdictional boundaries of ANAHEIM ; and the proposed CORRIDOR public improvements are anticipated to be installed on land owned by either ANAHEIM, Orange County Flood Control District (“ OCFCD”), Orange County Transportation Authority (“OCTA”), or Orange County Water District (“OCWD”); and
WHEREAS, the PARTNERS wish to collaborate on development of the CORRIDOR public improvements in order for the CORRIDOR to serve the respective interests of the PARTNERS and the public ; therefore, the PARTNERS intend this Agreement to stren gthen the working relationship between the PARTNERS to facilitate the development and implementation of viable projects that will benefit the CORRIDOR region; and
WHEREAS, ANAHEIM has completed the OC River Walk Engineering Feasibility Study (“Study”) that includes a detailed investigation and analysis of 17 unique opportunities in the CORRIDOR. The study includes detailed investigation of available records, including wet and dry utilities, land ownership, right of way, easements, adjacent developments, in frastructure improvement plans, and pedestrian/bike/transit plans and programs. This Study identified the environmental and regulatory permitting process that would be required for the different opportunities identified in the Study, and completed a preliminary hydraulic model; and
WHEREAS, ANAHEIM has submitted to OCFCD a conceptual review for portions of the CORRIDOR concerning OCFCD land or facilities via Orange County Public Works permit number FE21-0142 ; and
WHEREAS, the PARTNERS intend in this Agreement to acknowledge that the primary purpose of the CORRIDOR is to provide flood control and protection in accordance with the Orange County Flood Control Act set forth in California uncodified Water Code, Act 5682, section 2, also referred to as Water Code App. Sections 36 -1 et seq, also referred to as Chapter 723 of the State of California Statutes of 1927, as amended , and to replenish the Orange County Groundwater Aquifer, while improving connectivity, recreation, aesthetics, and eco logy of the CORRIDOR; and
WHEREAS, the PARTNERS will coordinate the design of potential projects within the CORRIDOR in good faith to attain common goals while maintaining OCWD and OCFCD’s ability to maintain and operate the river and otherwise fulfill t heir respective obligations within the CORRIDOR; and
WHEREAS, the PARTNERS agree that similar agreements will be required with OCWD, OCFCD, and the County; and
WHEREAS, PARTNERS wish to enter into this Cooperative Agreement as a basis for future planning and development of the CORRIDOR.
AGREEMENT
NOW, THEREFORE, the above recitals are fully incorporated herein by this reference as though set forth fully herein, and in consideration of the foregoing recitals of fact, the mutual covenants and conditions contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the PARTNERS agree as follows:
I. DEFINITIONS
For the purposes of this Agreement, the following words are defined as follows, unless otherwise apparent from context:
A. PARTNERS’ Authorized Representatives shall mean the following representatives, or their designee(s), authorized to perform actions required to implement the Agreement on behalf of said PARTNER and shall serve as the Authorized Representative for said PARTNER for all purposes related to this Agreement. Whenever reference is made herein to an action or approval to be undertaken by a PARTNER, the Authorized Representative shall be authorized to act on behalf of its respective PARTNER unless specifically provided otherwise or the context requires otherwise. Any determination of change which if implemented may materially alter the terms and legal or financial o bligations of the PARTNER shall require an amendment of this Agreement approved in writing by each PARTNERS’ board, council, or governing body. The Authorized Representatives shall have authority to send invoices, make and receive payments, and perform all other
activities required to satisfy the financial responsibilities of their respective PARTNER in accordance with the terms herein. Each PARTNERS’ Authorized Representative shall acknowledge that the Projects are to be made possible by virtue of certain grants and agrees to make reasonable efforts in good faith to assist and cooperate with ANAHEIM as administrator of grant funding for the PROJECTS for the PARTNERS to remain in full compliance with the terms of any such grant funding.
1) The authorized representative for ANAHEIM shall be the Director of Community Services or authorized designee.
2) The authorized representative for ORANGE shall be the Director of Public Works or authorized designee.
B. PROJECTS shall collectively mean the following four high priority elements (from a total of 17 identified opportunities) of the River Walk Corridor Project contemplated in the OC River Walk Engineering Feasibility Study:
1) River Impoundments (Two) – Installation of two River water impoundment structures to create semi-permanent water bodies in the Santa Ana River; 2) Reconfiguration of embankments north and south of Katella Avenue; 3) Multimodal Bridge North of Katella Avenue that will more safely connect pedestrians, bicycles, and equestrians to the Santa Ana River Trail; and 4) Trail Extension/Connections to the existing Anaheim Coves.
C. Project Engineer shall mean that firm or individual designated by ANAHEIM as Project Engineer to perform all tasks necessary to prepare and sign CORRIDOR construction plans, specifications, cost estimates, and secure regulatory permits in accordance with all applicable criteria from PARTNERS, and to execute and deliver all documents for implementation of the PROJECTS.
II. PARTNER ROLES & RESPONSIBILITIES
A. ANAHEIM shall:
1) Procure, manage and oversee the Architect & Engineers to design for the CORRIDOR PROJECTS and the Project Engineer for implementation of the PROJECTS;
2) Be responsible for bidding, awarding, and administering the construction contract(s) of the PROJECTS in accordance with the terms of this Agreement and shall require and ensure that the contractors, prior to commencement of construction, furnish a faithful performance bond, payment bond, and warranty bond in an amount equal to the estimated construction cost of the proposed CORRIDOR improvements (including labor and materials) and to perform contract obligations. Each bond shall name the PARTNERS as beneficiaries and shall grant each PARTNER’s Authorized Representative the right to enforce the bond to complete said improvements in compliance with all construction obligations
including but not limited to those for warranties. ANAHEIM and the PARTNERS’ Authorized Representative agree to not release any c ontractor from its bond(s) without the first obtaining mutual written approval by the PARTNERS’ Authorized Representatives.
3) Ensure CORRIDOR improvements , installations and/or construction shall be in accordance with PROJECTS’ plans that have been approved in writing by the respective PARTNER ’s A uthorized Representative and agree that each CORRIDOR improvement or feature shall have been duly approved by the PARTNER. Acceptance of future ownership of facilities with O/M obligations shall be specifically addressed on a project specific basis in subsequent agreements; 4) Furnish to the PARTNERS the Study and coordinate with the community to ensure community concerns are addressed in a manner acceptable to the PARTNERS for implementation of the PROJECTS;
5) Prepare the necessary environmental documents and secure all necessary resource agency permits for the PROJECTS and provide environmental review and analysis, and serve as the Lead Agency for the PROJECTS under the California Environmental Quality Act (CEQA)
6) Submit applications and obtain all necessary regulatory permits and resource agency approvals as may be legally required for PROJECTS prior to the respective CORRIDOR improvement being accepted by its respective owner and/or operator; 7) Acquire necessary rights of way needed for implementation of the d esign, construction and post -construction operations of the PROJECTS and the CORRIDOR improvements;
8) Apply for and manage grant funding for the PROJECTS and the CORRIDOR improvements; and,
9) Accept responsibility as owner and operator of public infrastructure and recreational features within the boundaries of ANAHEIM that lie outside of the River, unless otherwise specified in writing as accepted by another PARTNER.
B. ORANGE shall:
1) Review the Study, design, engineering and environmental re ports for the PROJECTS and CORRIDOR improvements within the boundaries of ORANGE and accept responsibility as owner and operator of public infrastructure and recreational features installed in accordance with plans approved by ORANGE that lie outside of the River, unless otherwise specified in writing 2) Review all necessary regulatory permits and resource agency approvals as may be legally required for PROJECTS within the boundaries of ORANGE; 3) Support ANAHEIM’s applications for grant funding for the PROJECTS and the CORRIDOR improvements.
III. INDEMNIFICATION
In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability, should it arise, jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895 of the Government Code, each PARTNER, pursuant to the authorization contained in Sections 895.4 and 895.6 of the Government Code, hereby agree s to and shall indemnify and hold harmless the other PARTNERS as provided in this Section.
To the fullest extent permitted by law, each PARTNER shall assume the defense of, indemnify and hold harmless the other PARTNERS, and each of their elected or appointed officers, employees, officials, volunteers, and agents from and against any and all actions, damages, liability or claims for death, injury, loss, damage or expense to persons or property arising from or related to, or claimed to have arisen from or be related to, the PROJECTS or implementation of t his Agreement, including claims or liability associated with that PARTNER’S responsibilities herein, including but not limited to, environmental compliance, design, construction, replacement, use, operation, maintenance, and/ or repair, o f the segment of facilities impacted by the PROJECTS, or resulting from said PARTNER’S breach of its obligations under the Agreement, except to the extent such actions, damages, claims, losses, expenses or liabilities have arisen from or relate to the willful misconduct or negligent acts of the indemnified PARTNER, or result from such PARTNER’S breach of its obligation(s) under the Agreement. If judgment is entered against all the P ARTNERS by a court of competent jurisdiction because of the concurrent acti ve negligence or improper acts of one or more Parties, the PARTNERS agree that liability will be apportioned as determined by the court.
No PARTNER shall request a jury apportionment.
IV. HAZARDOUS MATERIAL
“HM-1” is defined as hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law existing prior to the PROJECTS and not disturbed by the PROJECTS. “HM-2” is defined as hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the PROJECTS or as a result of the P ROJECTS. “HM Management Activities” is defined as management activities related to either HM -1 or HM-2 includin g, without limitation, any necessary manifest requirements, clean -up and disposal facility designations.
If HM -1 or HM -2 is found during implementation of the PROJECTS , ANAHEIM will immediately notify the P ARTNER’S Authorized Representatives . The P ARTNERS are responsible for any HM-1 found within property they own to the extent provided by applicable law, and entry into this Agreement shall not cause that liability to be assumed by or transferred to any other PARTNER. If HM-1 is discovered, the PARTNER’S Authorized Representatives will meet to determine the most cost -effective solution to deal with the HM -1 including, but not limited to, changes to the PROJECTS. Unless otherwise mutually agreed by the PARTNER’S Authorized Representatives, other PARTNERS shall not be responsible for the cost of HM Management Activities related to HM-1 on another PARTNER’s property, if any.
If HM -2 is found within the CORRIDOR due to the PROJECTS , ANAHEIM will be responsible for HM Management Activities related to HM-2. HM-2 related HM Management Activities during construction shall be paid as construction costs for that respective portion of the PROJECTS. HM-2 related HM Management Activities after construction shall be paid by the respective owner and/or operator of the CORRIDOR improvement or feature in accordance with the terms herein.
V. FACILITATION AND IMPLEMENTATION
1) Assignment. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. No assignment of either Part y’s interest in this Agreement shall be made without the written consent of the PARTNERS.
2) Entirety & Amendments . This Agreement contains the entire agreement between the Parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties; and no oral understanding or agreement not incorporated herein shall be binding on either of the Parties.
3) Severability. If any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible.
4) Governing Law & Venue. This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of c ompetent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.
5) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
6) Termination. In the event any PARTNER defaults in the performance of any of its obligations under this Agreement or materially breaches any of the provisions of this Agreement, the non -breaching PARTNERS shall have the option to terminate this Agreement, in whole or in part, upon thirty (30) days’ prior written notice to the breaching Party. In the event the breaching PARTNER cures such default within such thirty (30) day period, PARTNERS election to terminate shall be deemed revoked and of no further force and effect as to that particular default.
7) Consent to Breach Not Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. Any consent by any Party to, or waiver
of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.
IN WITNESS WHEREOF, each PARTNER has caused this Agreement to be executed by its respective authority and attested by its re spective Clerk on the dates written opposite their signatures, all thereunto duly authorized by their authority respectively.
Date: __________________________
Attest:
City Clerk
By: ________________________________
Theresa Bass, City Clerk
CITY OF ANAHEIM,
a municipal corporation
By: _______________________________
Sjany Larson-Cash, Director of
Community Services
Approve as to Form:
ANAHEIM CITY ATTORNEY
By: _______________________________
Bryn M. Morley, Deputy City Attorney
147933
Date: __________________________
Attest:
City Clerk
By: ___________________________
CITY OF ORANGE,
a political subdivision of the State of
California
By: _______________________________
Mayor of the City of Orange
Approved as to Form:
City Attorney
By: _______________________________
Exhibit A